Litigation: The hybrid fact/expert witness is a trap for the unwary

In litigation, we typically assume that there are two types of witnesses: the fact witness who has direct knowledge of the issues in the case and the expert witness who will use her specialized knowledge, skill and/or experience to assist the judge and/or the jury understand the evidence. But oftentimes, these two witnesses are morphed into one — an expert in a particular field who has first-hand knowledge of, or involvement in, the underlying facts. This type of witness is called the hybrid fact/expert witness. The most-cited example of this hybrid witness is the treating physician but, there are many more examples in the commercial context — the employee accountant, engineer or scientist, among many others, who are experts in their particular fields and who may have familiarity with the facts of a particular case. Use of these types of fact/expert witnesses can enhance the effectiveness of the testimony they offer but, as recognized in Sullivan v. Glock, Inc., the disclosure requirements under Rule 26 of the Federal Rules of Civil Procedure can indeed become a “trap for the unwary.”

The disclosure requirements for hybrid witnesses pre- and post-2010 amendment

Before the 2010 amendments to the Federal Rules of Civil Procedure, Rule 26’s disclosure requirements addressed only a single category of opinion witnesses: those retained or specially employed to provide expert testimony in the case, or one whose duties as the party’s employee regularly involve giving expert testimony. Under the plain language of that rule, the disclosure obligations extended only to the typical expert witness hired after-the-fact by counsel to perform certain analyses and/or render certain opinions in the litigation. But what were the disclosure obligations for fact witnesses that would present testimony pursuant to Federal Rule of Evidence 702, 703 or 705? The federal requirements for those hybrid witnesses were virtually non-existent; the rules required only that the identity of those witnesses be disclosed. Trial courts had the discretion to order additional disclosures, and courts (even those in the same jurisdiction) took varying approaches to the disclosures they thought necessary in a particular case.

To create uniformity and predictability of the disclosure requirements for hybrid witnesses, and to remedy what it deemed a “tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement,” the Advisory Committee amended Rule 26(a)(2) to include a new subsection (C). As amended, Rule 26 requires that during the expert disclosure period, counsel must provide a written summary of the opinion the hybrid witness will offer in the litigation. More specifically, the written report must disclose the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705 and a summary of the opinions the witness is expected to offer. As with all disclosure requirements under the federal rules, failure to comply in a timely manner could result in the hybrid witness being stricken entirely or being barred from providing any opinion testimony.

Communications between attorneys and hybrid witnesses

Although amended Rule 26(a)(2) sought to add clarity to the disclosure obligations of hybrid witnesses, it brought significant uncertainty around the issue of the protection afforded communications between attorneys and hybrid witnesses. The amended Rule 26(a)(2)(B) (governing the obligations regarding retained testifying experts) makes clear that but for three enumerated categories, communications between a retained expert and counsel are protected from discovery. But, by the terms of that section, the protection appears to be limited to onlythose experts who are required to provide full expert reports, not to those who provide summary reports – the hybrid witness. Indeed, the Advisory Committee recognized Rule 26(a)(2)(B)’s limitations, noting that the rule “does not itself protect communications between counsel and other expert witnesses, such as those for whom disclosure is required under Rule 26(a)(2)(C).” And, in expressly considering whether to add such a protection, the committee declined to do so, stating that “the time has not yet come to extend the protection for attorney expert communications beyond experts required to give an (a)(2)(B) report.”

It is not surprising, then, that some courts have permitted discovery into hybrid witnesses’ communications with counsel because those communications are not expressly protected under the rules. Expressio unius est exclusio alterius at play.

What you need to know to avoid the traps

Witness’ Status: Determine the witness’ status early in the litigation. The fact that a witness has a particular expertise does not necessarily make her a hybrid witness.

Timing, Timing, Timing: Comply with the disclosure obligation of Rule 26(a)(2)(C). Not only should the identity of the hybrid witness be disclosed, but a summary of her opinions must be turned over during the expert disclosure period as well.

Identify the Subject Matter: Clearly identify the subject matter requiring opinion testimony. The disclosure obligations under Rule 26(a)(2)(C) are limited to the opinion testimony being given by that witness, not the factual portions of her testimony.

Burden: The party seeking to provide a summary report and not a complete report bears the burden of demonstrating that the witness is a hybrid witness and not one retained to give expert testimony.

Attorney-Client Privilege/Work-Product Protection: The contours of what is protected from discovery are still undefined. Be prepared for discovery disputes and motion practice around those communications.

Rule 37 Sanctions: Failure to comply with Rule 26’s disclosure obligations may result in Rule 37 sanctions, which could include striking the opinion testimony or striking the witness in her entirety.